H-1B Visa

The H-1B visa has flexibility, which makes it a great fit for a wide variety of circumstances. This category allows US companies to sponsor foreign workers for professional positions in any industry, and covers short or long term employment. The H-1B may be for part or full time employment; and the visa holder can work for more than one employer at a time. Originally issued for a three-year period, H-1B status is renewable for an additional three years. An employer is allowed to extend their employee's status past the six years, as long as they are sponsoring the worker for a green card and have met specific filing deadlines.

The H-1B visa provides great versatility for employers and applicants alike. I have successfully filed H-1B petitions for a wide variety of professionals, including: Winemaker, Financial Analyst, Jeweler, Aquatics Director, Pre-School and High School Teacher, University Professors, Software and Computer Engineer/Developer/Analyst, Account Executive, Accountant, Social Worker/Therapist/Case Worker, Physical Therapist, Intern Architect, Food and Beverage Manager and Marketing and Public Relations Specialist.

Requirements for an H-1B Visa:

Three main factors determine eligibility for this visa:

  • The position offered must require a bachelor's degree or higher in a specified field or fields
  • The applicant must have the specified bachelor's degree OR have the equivalent of a bachelor's degree via work experience/education
  • The sponsoring company must be willing to pay the "prevailing wage"

Important Filing Deadline-The H-1B Cap!

Warning! Consult your immigration attorney early and often, so you do not miss the H1B filing deadline. The best practice is to start working with your attorney by February 1 of your filing year, in order to meet the April 1 filing date. I have successfully prepared and filed H-1B petitions for clients who came to me in mid-March, but the additional time is always a good idea.

Why the rush? DHS issues only 85,000 new H-1B visas per fiscal year (20,000 reserved for those with US master degrees). Applications are accepted on April 1 of each year and approval notices allow employment to begin on October 1 of the same year. This may sound like a lot of visas, but it isn't. Generally, DHS receives more than 85,000 applications in the first week of April. Therefore if you do not meet the filing deadline, you are locked out until the following year. For those applications filed on time, DHS then uses a lottery system to select cases for adjudication.

If the applicant is already in H-1B status, then lucky you! In that instance, the employer may file the H petition at any time of year because the foreign worker is no longer subject to the H-1B cap.

I want to file an H-1B in June. Is My Company Exempt from the H-1B Cap?

As explained above, most first time H applicants must file on April 1. Luckily, there are several employers or applicants who are exempt from the cap. These include:

  • Applicants who are either already in H-1B status or had H-1B status in the past six years even if they have been out of the U.S. for more than one year since attaining H-1B status
  • Institutions of higher education: DHS defines this as a public or other nonprofit institution that is nationally accredited, authorized by their state to provide an education program for which the institution awards a bachelor's degree or higher or two year program that counts as full credit towards a bachelor's degree
  • A Non-profit institution related or affiliated with an institution of higher education:Related or affiliated is not clearly defined but can include: sharing the same board or federation, shared ownership, attached as branch, cooperative or subsidiary. I have also had some success where the non-profit can produce signed "affiliation agreements" to provide clinical training or teaching within the institution or as a part of the students' graduation requirements.
  • Non-profit research organization or governmental research organization

If I own a business, can I get an H-1B through my company?

The answer is, it depends. The DHS position is that a person cannot be an employer and an employee at the same time. However, I have successfully filed H-1B cases for owner-applicants. DHS will approve these cases as long as the company is structured to meet certain legal criteria; the applicant reports to a Board of Directors or President; and can demonstrate he or she is actually an employee who can be hired, fired and directed.

Can a start-up company, in operation for less than one year, sponsor me for an H-1B?

Small companies, including start-ups, may sponsor applicants for an H-1B visa. DHS will scrutinize these cases more carefully, therefore it is critical that the company works carefully to document their viability. I have successfully won cases in this category where we can show: the company meets all legal requirements to be a functioning entity; has sufficient capital to pay employee wages; has a true need for the professional worker's services that will cover the entire period specified; and has other workers (or independent contractors) to take care of other business functions.

As these cases truly hinge on factors specific to each company, evaluate your chances carefully with your attorney, before deciding to file.

I am an F-1 student, and my OPT expires in July. Do I have to stop work until October 1?

The quick answer is no- you are eligible for the H-1B Cap-Gap exemption. As long as your H-1B petition was filed before your OPT expiration and your school's foreign student advisor updated your status with DHS, you are allowed to continue work after OPT expiration, until October 1. If your H-1B petition has not been approved by that date, you must stop work until it is. Foreign travel will render you ineligible for the Cap-Gap exemption and can cause additional complications, so halt those summer plans!

Do I need to have a Bachelor Degree?

In order to qualify for an H-1B visa, the applicant must have a four year degree from a U.S. college or university or the equivalent of this degree. There are two ways to demonstrate this equivalency: via a full four year foreign degree or via education and professional work experience. I routinely file cases in both categories and DHS is very open to equivalencies based on education/experience or experience alone.

If the applicant has a post-secondary degree based on four years of study, this will generally be the equivalent of a U.S. bachelor's degree. Some three year degrees, like those from the United Kingdom, also equal a US degree. To determine this, the degree must be submitted to an accredited independent credentials evaluator, who will then certify the U.S. degree equivalence. This certification is then submitted to DHS along with the H-1B petition.

An applicant may also relying on a combination of education and professional work experience to demonstrate equivalency to a U.S. bachelor's degree. Three years of progressively responsible work experience may be substituted for each year of college level education that the applicant lacks. To determine this, the degree and detailed proof of experience must be submitted to an accredited independent credentials evaluator. In addition, the documentation must be evaluated by two college professors who work in the specialty, who will then certify the U.S. degree equivalence.

H-1B Fee Exemptions:

The employer is legally required to pay most DHS filing fees for H-1B petitions. These can be fairly hefty so fitting into the fee exemptions is especially important. Generally the fees include the following:

  1. Form 129 Basic Filing Fee: $320
    (Every employer pays: no exemption)
  2. Fraud Fee: $500
    (Every employer pays this fee one time for each H employee: no exemption)
  3. Additional Fee: $750 (25 or less employees)
    $1500 (more than 25 employees)
    (Employer pays this fee the first two times filing an H-1B petition for each employee)
  4. Exemption to Additional fee:
    1. Institution of higher education
      1. Defined as a public or other nonprofit institution that is nationally accredited, authorized by their state to provide an education program for which the institution awards a bachelor's degree or higher or two year program that counts as full credit towards a bachelor's degree
    2. A non-profit institution related to or affiliated with an institution of higher education that provides clinical training
    3. Related or affiliated is not clearly defined but can include: sharing the same board or federation, shared ownership, attached as branch, cooperative or subsidiary. I have also had some success where the non-profit can produce signed "affiliation agreements" to provide clinical training or teaching within the institution or as a part of the students' graduation requirements.
    4. Primary or secondary institution (non-profit or public)
    5. A non-profit entity engaging in an established curriculum related clinical training of students registered at these institutions
    6. Non-profit research organization or governmental research organization
    7. If the employer is filing an H-1B extension request for the second time (That means the third H petition filed for that employee, by that employer)

H-1B Limitations If Company Received Financial Assistance under the Troubled Asset Relief Program (TARP):

In February 2009, Congress passed the Employ American Workesr Act (EAWA). This prohibits companys that obtained financial assistance under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act from hiring new H-1B employees. HOWEVER: this limitation does not apply if the applicant first worked for the company in F-1 Student Status pursuant to Optional Practical Training.

H-1B Visa Holders May Apply for a Green Card:

H-1B Visa Holders may apply for a green card. There are three steps to obtaining a green card via employment. To learn more, please click on the following: step one (labor certification application); step two (I-140 immigrant petition) and step three (green card application).

Other Business Visas That Might Apply:

In addition to H-1B visas, DHS also grants business immigration visas to investors, intra-company transfer employees and applicants seeking on-the-job training. Some categories require a bachelor's degree, but several work visas exist for those lacking a four year college level degree. For more information about these business immigration visas, please read these articles: